Policies that enshrine “rights to work” influence labor law broadly, spilling over into a litany of exploitative and discriminatory employment laws.

For many years now, law students have been taught that Lochner died in the New Deal. Centrists and progressives regard the Lochner era as a time when conservative judges overreached—taking it on themselves to block democratic efforts to improve the condition of workers. Perhaps more surprisingly, many modern conservatives have criticized Lochner in similar terms—though they have done so in support of an argument that the courts are making the same overreaching error as Lochner when they protect women’s reproductive rights or the rights of Americans based on sexual orientation. Some libertarian conservatives have sought to revive Lochner’s doctrine of constitutional freedom of contract, but their position remains a minority one.

This picture, though, focuses on the rarefied precincts of constitutional law. When we look at the doctrine of labor and employment law, we find something very different. As courts apply the worker protections adopted in the New Deal and later, they continue to be driven by Lochner-ist premises. They continue to disregard the imbalance of bargaining power between (many) employers and (many) workers. And as a result, they have adopted and applied a number of doctrines that have severely undercut the protections that legislatures have sought to give workers. The misguided assumption of equal power undermines constitutional, statutory, and common law protections in the workplace.

Chief among the labor doctrines to which courts apply the Lochner-ist premise of equal bargaining power are:

Employment at will. As a formal matter, the employment-at-will doctrine authorizes both employers and employees to terminate the relationship at any time, and the Supreme Court expressly relied on this supposed equality when it gave constitutional significance to at-will employment in its Lochner-era decisions. Since then, legislatures have made inroads on the rule with workplace protections like the NLRA, antidiscrimination laws, and whistleblower statutes, but the resilience of the doctrine has undermined their enforcement. Courts continue to treat employment at will as the baseline rule while they treat the modern statutes as mere exceptions—exceptions that they feel a need to read narrowly to avoid threatening what they understand as the core of the doctrine.

A worker’s status as an “employee.” Employers have the power to drain workplace protections from their workforce simply by categorizing workers as independent contractors rather than as employees and writing those categorizations into contractual documents. In the handful of cases in which courts review those employer actions, their decisions often rest on a Lochner-ist premise of free contract among equals.

Forced arbitration. Courts tend to regard arbitration requirements purely as a matter of contract: Workers must agree to arbitration if they are to lose their right to pursue their claims in court. But workplace arbitration agreements are typically offered as a take-it-or-leave-it condition of employment.

Right-to-work laws. Twenty-seven states have adopted right-to-work laws through the legislative process, but in 2018 the U.S. Supreme Court imposed a right-to-work regime on government employees across the nation. The court said that collective bargaining was a form of speech, and that requiring workers to pay a fee to unions to subsidize that speech violated the worker’s First Amendment rights.